Hancock v. Hallmann

• Decision Date: 11 October 1938
• Citation: 229 Wis. 127,281 N.W. 703
• Parties: HANCOCK v. HALLMANN, Sheriff.
• Court: Wisconsin Supreme Court

229 Wis. 127

281 N.W. 703

HANCOCK

v.HALLMANN, Sheriff.

Supreme Court of Wisconsin.

Oct. 11, 1938.

Error to review an order by the Circuit Court for Marquette County; C. F. Van Pelt, Judge.

Habeas corpus proceeding by William H. Hancock against Emil Hallmann, Sheriff of Marquette County. Order quashing the writ, and plaintiff brings error.-[By Editorial Staff.]

Reversed with directions.

On June 21, 1938, plaintiff in error petitioned the circuit court for a writ of habeas corpus directed to defendant in error, Emil Hallmann, to secure his discharge from custody of the sheriff of Marquette county after being bound over by the county court of Marquette county for trial after a preliminary examination upon a charge of rape. The order appealed from quashed the writ of habeas corpus and remanded the defendant to the custody of the sheriff. The material facts will be stated in the opinion. For convenience the plaintiff in error will hereafter be referred to as the defendant.

Rogers & Owens, of Portage, for plaintiff in error.

Orland S. Loomis, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Burton E. Hoffman, Dist. Atty., of Montello, for defendant in error.

WICKHEM, Justice.

Defendant was charged by the complaint of Emil Bornick with having ravished the daughter of Bornick, a female over 16 years of age, by force and against her will. On June 15, 1938, a preliminary examination, was held before the county judge of Marquette county. Upon prosecutrix being sworn, counsel for defendant objected to her competency upon the grounds that she was of such limited intelligence and suffering from such insane delusions and hallucinations as to be incompetent as a witness. The objection was overruled, the court stating that it would be in better position to determine that question after the hearing. The court was then requested by defendant to conduct an examination to ascertain the competencyof the witness and acceded to the request to the extent of asking about half a dozen questions relative to the witness' name, age, and residence. The examination of the witness upon the facts of the complaint then proceeded. At this stage, counsel for defendant requested permission to conduct an examination into her competency. The court denied this request, stating, that if there was sufficient testimony to bind defendant over, the latter could have such an examination before trial in circuit court. Defendant then entered a general objection to any evidence produced by the prosecutrix at the hearing. The hearing then proceeded, and disregarding for the moment all questions as to the witness' competency and the manner in which her story was elicited, it may be stated that her testimony was that she was sent down to the mail box to get the mail; that defendant was a stove salesman who had theretofore attempted to sell a stove at the farm; that he drove along the road in a car resembling that of the mail man, and she stopped his automobile, got into the car at his invitation, and had intercourse with him; that thereafter the mail man came and she got out of defendant's car and got the mail, and then got back into the car and again had intercourse with defendant. Her testimony is that neither the mail nor her clothes were torn, dirty, or wet, and that she did not bleed. She claims to have disclosed the facts of the transaction to her mother after she had been questioned as to the reason for her being so long at the mail box. Her testimony is corroborated so far as going to the mail box and getting into defendant's car is concerned. A physician testified to the fact that her hymen was presently ruptured, but that the rupture was not a recent one, and that if it had been recent, it would have been very obvious since he made his examination within a few hours after the alleged attack. He did state, however, that there could have been some degree of penetration of the prosecutrix.

It is clear that without the testimony of prosecutrix, there was not sufficient evidence upon which to hold defendant for trial. Prosecutrix' evidence, if competent, does not disclose a rape by force, but it is conceded that it would be proper to bind defendant over if the preliminary examination disclosed any sexual offense. In view of the fact that the testimony of prosecutrix is essential to the showing of any crime upon the preliminary examination, it becomes important to consider defendant's objection that the examination of the witness conclusively shows her lack of capacity to recollect and to narrate the facts of this transaction, as well as her failure to understand and appreciate her obligations as a witness. This requires a review of the evidence.

Prosecutrix testified that she was four years of age, when in fact she was twenty-four; that she could write but not read; that she went to “our church” but did not know its name; that it was right to tell a lie but not wrong to tell the...